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Citizens United and the First Amendment

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As we move closer to another presidential election, the Supreme Court case of Citizens United v. Federal Election Commission will be brought up with increasing frequency. Decided by a vote of 5-4 on January 21, 2010, it was one of the most polarizing Supreme Court decisions of the Roberts Court.

Justice Stephen Breyer, who joined fellow justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor in a dissenting opinion, talked about the decision last year on NPR’s On Point with Tom Ashbrook. The second anniversary of the case was the occasion of numerous articles, as was the first

In Citizens United, the Supreme Court reversed the ruling of the U.S. District Court for the District of Columbia that upheld the provisions of the Bipartisan Campaign Reform Act (BCRA) prohibiting unions and corporations, whether for-profit or not-for-profit, from broadcasting “electioneering communications” that mentioned a candidate within 60 days of a general election or 30 days of a primary. Unions and corporations no longer have to create political action committees (PACs) to spend on electioneering.

The case had nothing to do with whether unions and corporations used funds from their treasuries to make contributions to political candidates or for independent expenditures that advocate the election or defeat of a candidate in federal elections. That is still prohibited under federal law.

The ban on corporate contributions to federal election campaigns was enacted in 1907. The ban was extended to unions in 1943, which led to the creation of PACs. Modern campaign-finance rules began with the Federal Election Campaign Act of 1971 (FECA), which set contribution limits and requirements for disclosure of contributions and expenditures, and instituted public financing of presidential election campaigns. The BCRA, also known as the McCain–Feingold law, after its two Senate sponsors, was passed in 2002.

Citizens United is a conservative nonprofit group that “seeks to reassert the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security.” The organization is known for producing documentaries featuring conservative leaders and politicians such as Newt Gingrich, Dick Morris, Mike Huckabee, Michele Bachmann, and Fred Thompson.

The controversial documentary Hillary: The Movie was released by Citizens United in January 2008. It was a critical look at Sen. Hillary Clinton, a Democratic candidate for president that year, and now the U.S. secretary of State. Citizens United sought to make Hillary available through video-on-demand within 30 days of the 2008 primary elections and to advertise that fact on broadcast and cable television, thus violating the BCRA. In December 2007, Citizens United sought declaratory and injunctive relief against the Federal Election Commission (FEC) in federal district court, which was denied.

In his oral arguments before the Supreme Court, U.S. deputy solicitor general Malcolm Stewart, representing the FEC, argued that under existing law the government could ban books published or distributed by a corporation or union if they contained one sentence expressly advocating the election or defeat of a candidate, ban the distribution of political books over Amazon’s Kindle, and prevent a union from hiring a writer to author a political book.

In overruling the U.S. District Court for the District of Columbia, as well as reversing all or part of two previous Supreme Court decisions (Austin v. Michigan Chamber of Commerce [1990] and McConnell v. Federal Election Commission [2003]), Justice Anthony Kennedy, writing for the majority in Citizens United, often refers to the First Amendment:

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.

There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. 

When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

But civil-rights lawyer and professor of law at Temple University School of Law David Kairys sees things differently. In his article “Money Isn’t Speech and Corporations Aren’t People,” he says,

The money-is-speech theory turns out to be a rhetorical device used exclusively to provide First Amendment protection for all money that wealthy people and businesses want to give to, or to spend on campaigns. It also doesn’t make sense under long established free-speech law. Spending or donating money to support or facilitate speech is expressive and deserves some protection. But money simply doesn’t make it into the category of things that are and embody speech, such as books, films, or blogs. Traditional speech-law analysis would separate the speech from the conduct (or “nonspeech”) elements of campaign spending and donation and allow considerable leeway to regulate the latter. Even as to “pure” speech, “compelling” government interests are overriding. And spending and donating money seem, among the traditional speech-law categories, a “manner” of speaking that the court has said usually can be “reasonably regulated.”

The other basic theory supporting the ruling in Citizens United — the court’s claim that, for some purposes, corporations are constitutionally, if not actually, people — comes out of the long history of the development of corporations. But the extension of corporate personhood to campaign speech is a controversial innovation of the conservative justices over the last few decades.

Both of these theories — that money is speech and that corporations are people — have an easier time than they should in courts and with the public, too, because they are posed as counters to censorship.

Kairys is right, but he is wrong.

The BCRA had nothing to do with the amount of money that could be spent by unions and corporations on “electioneering communications”; it prohibited them from spending any amount of their money (money donated by individuals was okay) at all on “electioneering communications” within 60 days of a general election or 30 days of a primary. The BCRA was clearly designed to permit the government to limit who could speak and when they could speak, contrary to the First Amendment, which reads,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Whether the broadcast of “electioneering communications” is considered to be freedom of speech or freedom of the press is irrelevant, since both are equally protected. And the debate over “corporate personhood” is likewise irrelevant. The protection of the freedom of speech and of the press is not limited to individuals.

And since when do “compelling” government interests override “pure” speech? What part of “Congress shall make no law” allows for government interests, compelling or not, to abridge the freedom of speech?

Note also that the First Amendment does not merely bar Congress from suppressing the freedom of speech; it uses the broader term abridging the freedom of speech. It could be argued that any law limiting campaign contributions or expenditures abridges the freedom of speech and the freedom of the press.

But those who have argued that the federal government has no authority to regulate political spending or donations because they are a form of speech, and are therefore protected by the First Amendment, likewise err. Spending or donating money to support or facilitate speech is clearly not speech. Government decrees and Supreme Court rulings have made unwarranted speech distinctions (such as classifying flag burning as a form of speech) because they misconstrue the nature of the First Amendment.

The First Amendment, like the entire Bill of Rights, does not grant Americans rights because the benevolent U.S. government feels like doing so. That is an all-too-common, but erroneous, viewpoint. The First Amendment grants nothing. It merely prohibits the government from infringing the natural rights that Americans already have. The Constitution grants certain limited powers to the central government. No power was granted to abridge any of what are commonly referred to as our First Amendment freedoms. The First Amendment merely reinforces the idea that the government lacks the power under the Constitution to abridge Americans’ existing freedoms.

As Judge Andrew Napolitano has recently explained,

If there were no First Amendment, would we still have the freedom of speech? The answer, like many in the law, depends on what values underlie the legal system. If the government is the source of our rights, then without the First Amendment’s guarantees of free speech, any government could legally punish you for saying words and expressing thoughts it hated or feared; and it could even silence you before you spoke.

On the other hand, if our rights come from our humanity and our humanity is a gift from God, then we would still enjoy the freedom of speech, whether it is insulated from government interference by the First Amend- ment or not. The wording of the First Amendment itself gives us a peek at what its authors thought. They wrote, “Congress shall make no law … abridging the freedom of speech.” It doesn’t say that Congress shall grant freedom of speech; rather, it prohibits Congress from interfering with it. And by referring to free speech as the freedom of speech, the drafters recognized that the freedom of speech already existed before the country that they were founding even came to be.

All Americans, whether individually or corporately, had the natural right to speak, publish, and spend any amount of their money freely before there was any First Amendment, Bill of Rights, or Constitution.

The ultimate purpose of campaign-finance laws is to limit the influence of money on elections. Here is how Barack Obama condemned the Citizens United decision during his 2010 State of the Union Address:

Last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

 But not only was the president wrong about current law regarding the expenditures foreign corporations and entities make in U.S. elections, it is a myth that money spent on or in behalf of political campaigns translates into buying election victories. In 2010 Linda McMahon of WWE fame spent $50 million of her own money to be the Republican nominee for the U.S. Senate from Connecticut only to lose to the Democrat in the general election by 11 points. If Obama received trillions of dollars in donations from every union and corporation in the United States and bought up all the available TV and radio advertising time from now until election day, he still would not get the votes of millions of Americans. And if the Republican nominee for president received and did likewise, he still would not get the votes of millions of Americans.

In a free society, individuals, groups, organizations, corporations, and unions would be free to spend any amount of their own money in whatever way they choose for or against any candidate they choose — including “electioneering communications” and direct spending on election campaigns. There would be no public financing of elections, spending limits, donation limits, disclosure requirements, 30- or 60-day rules, distinctions between types of speech, distinctions between hard and soft money, or campaign-finance restrictions.

But, of course, in a free society, individuals, groups, organizations, corporations, and unions would be free to spend any amount of their own money in whatever way they choose on whatever product or service they choose. Likewise, in a free society, individuals, groups, organizations, corporations, and unions would be free to receive any amount of money they could for whatever product or service they choose to sell. And there would be no government regulation, subsidies, or interference in any peaceful transaction.

The Citizens United decision is a small step — albeit a very small one — toward a freer society because it eliminates a government attempt to abridge the freedom of speech. Unfortunately, there are many more steps that must be taken to restore the American republic to a free society. But, as it has often been said, a long journey begins with one small step.

This article was originally published in the August 2012 edition of Future of Freedom.

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